61
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 25, 2011, 12:27:11 PM »
Thank you S.G.! I am already studying all this!
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62
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 22, 2011, 11:18:52 AM »
I have read the agreement of Miles Ertman and Masterfile. It was signed in June 1999. I have checked the term of this agreement, and it was said that the agreement is for the term of 3 years and then would be automatically renewed unless written notice of termination was sent to Masterfile. So, there is no expiration date to this agreement.... It was also said that the artist authorize Masterfile to claim infringement damages on his behalf. so, according to to all the papers, they do have a claim.
I have checked the registration papers. It says that the nature of work is Catalog of Images Displayed in Internet, so what they registered was not the particular image, but the collection of many images - so called compilation. As Oscar says - one work. So, does it mean if my husband used only one image from their collection, he used only one tiny part of their registered work?May be this could get a sort of relief from "fair use"?
How can I check what their actual damages? We went to their website, and tried to see the price for the image - its regular fee. We came up with $740. I understand, that this amount of money they "lost" with the usage of the image by my husband. But they add their external and internal costs for finding and enforcing infringement. How can we find what these costs are? I don't think that they will share with all this information.
I have checked the registration papers. It says that the nature of work is Catalog of Images Displayed in Internet, so what they registered was not the particular image, but the collection of many images - so called compilation. As Oscar says - one work. So, does it mean if my husband used only one image from their collection, he used only one tiny part of their registered work?May be this could get a sort of relief from "fair use"?
How can I check what their actual damages? We went to their website, and tried to see the price for the image - its regular fee. We came up with $740. I understand, that this amount of money they "lost" with the usage of the image by my husband. But they add their external and internal costs for finding and enforcing infringement. How can we find what these costs are? I don't think that they will share with all this information.
63
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 21, 2011, 10:47:34 PM »
That's what my husbant got by e-mail in response to our requests:
Dear Mr. :
I am in receipt of your emails dated July 14th and July 18, 2011. In response to your emails, please note the following:
1. Masterfile is in the business of licensing rights-managed images for commercial reproduction by clients around the world. We have been doing so for nearly 30 years. While we would prefer if end users licensed our material legally, unfortunately this is not always the case. As such, we must dedicate valuable resources which could be utilized elsewhere to locating infringing use of our intellectual property, and enforcing our copyright. We do this because the unauthorized use of our images negatively affects us and our artists.
2. The image you published on your commercial web site is represented exclusively by Masterfile. As exclusive licensee, Masterfile has the right to protect and enforce its interest in the image and is entitled to the remedies provided by the Copyright Act. Masterfile has no record that it has authorized your use of the image. The use of the image, without a valid license from Masterfile constitutes copyright infringement.
3. With all due respect, many of the comments contained in your correspondence are without merit, irrelevant and are certainly uniformed. In addition, your attorney’s comment that a rights-holder must “…put the copyright sign…” on their intellectual property in order to protect it is completely false. There is no requirement or obligation for a copyright-owner to assign a copyright symbol, watermark or any other type of identification to a copyright-protected work in order to protect their rights to their intellectual property. It is solely the responsibility of the end user, the party publishing the intellectual property, to ensure that they are not infringing on the rights of any party prior to publishing said material.
4. As per your request, I have attached a copy of our Certificate of Registration number VA 1-023-866, issued to us by The Library Of Congress, United States Copyright Office for the registration of Masterfile Corporation’s (“Masterfile”) rights-managed image number 700-00022728 ( Niagara Falls , ON ). In addition, I have provided you with a redacted Artist Agreement with Mr. Miles Ertman, the artist related to this matter, for your review. Please refer to Section 4 – “Assignment of Copyright” of the attached Artist Agreement with regard to your question related to the ownership of the image referenced above.
5. Our Claim amount in the sum of US$2,790.00 includes: (i) the regular fee for licensing the image; (ii) our external costs associated with locating infringements of our copyright protected materials; and (iii) our internal costs associated with enforcing our copyright. The fees pursued in infringement matters where our rights-managed materials are published without license or authorization from Masterfile or compensation being paid to the artist, are fair, balanced and reasonable.
6. I have attached a PDF document containing a side-by-side comparison of the image you published on your commercial web site and a copy of our watermarked image number 700-00022728, for your verification purposes. Review the images closely; I assure you they are the same image.
7. In the absence of a watermark (according to your statement), it is reasonable to assume that the Masterfile image you acquired through the Yandex.ru search engine was likely licensed to a legitimate user who legally published it on their own web site. This does not legitimize your use of our image.
8. “Innocent infringement” is not defense to liability, but is only considered in assessing the appropriate measure of statutory damages. Moreover, it is your burden, and a heavy one, to show that you are entitled to the lowest measure of statutory damages based on qualifying as an innocent infringer. Depending on the circumstances, Masterfile may elect to receive actual damages instead of statutory damages.
9. Your use of a Masterfile rights-managed image has caused damages to Masterfile and the artist that it represents as Masterfile has not been able to pay royalties to its artist for your use of the image. It also potentially harms Masterfile’s ability to license the rights-managed image. For these images, Masterfile needs to carefully track and control their licensed use so that its clients can know if their competitors have used the same (or even similar) images by providing usage histories for rights-managed images. These rights-managed images are more expensive to license than other types of stock images, and the control of their use is vitally important to Masterfile’s business. The bottom line is that Masterfile’s business is licensing images so it harms Masterfile’s business when it is not compensated for the use of its images.
10. Please feel free to consult with as many attorneys as you wish. And please note that if Masterfile is forced to litigate this matter, we will willingly provide any and all documentation required by the Court at that time. We have nothing to hide.
Be advised that if this matter is not resolved immediately, Masterfile will be left with no choice but to commence litigation. In such event, Masterfile will seek all remedies available under the Copyright Act, including statutory damages and all legal costs.
This letter is an attempt to settle this claim. Masterfile reserves all its rights and remedies whether legal or equitable.
Best regards,
John MacDougall
Well written, huh?
Dear Mr. :
I am in receipt of your emails dated July 14th and July 18, 2011. In response to your emails, please note the following:
1. Masterfile is in the business of licensing rights-managed images for commercial reproduction by clients around the world. We have been doing so for nearly 30 years. While we would prefer if end users licensed our material legally, unfortunately this is not always the case. As such, we must dedicate valuable resources which could be utilized elsewhere to locating infringing use of our intellectual property, and enforcing our copyright. We do this because the unauthorized use of our images negatively affects us and our artists.
2. The image you published on your commercial web site is represented exclusively by Masterfile. As exclusive licensee, Masterfile has the right to protect and enforce its interest in the image and is entitled to the remedies provided by the Copyright Act. Masterfile has no record that it has authorized your use of the image. The use of the image, without a valid license from Masterfile constitutes copyright infringement.
3. With all due respect, many of the comments contained in your correspondence are without merit, irrelevant and are certainly uniformed. In addition, your attorney’s comment that a rights-holder must “…put the copyright sign…” on their intellectual property in order to protect it is completely false. There is no requirement or obligation for a copyright-owner to assign a copyright symbol, watermark or any other type of identification to a copyright-protected work in order to protect their rights to their intellectual property. It is solely the responsibility of the end user, the party publishing the intellectual property, to ensure that they are not infringing on the rights of any party prior to publishing said material.
4. As per your request, I have attached a copy of our Certificate of Registration number VA 1-023-866, issued to us by The Library Of Congress, United States Copyright Office for the registration of Masterfile Corporation’s (“Masterfile”) rights-managed image number 700-00022728 ( Niagara Falls , ON ). In addition, I have provided you with a redacted Artist Agreement with Mr. Miles Ertman, the artist related to this matter, for your review. Please refer to Section 4 – “Assignment of Copyright” of the attached Artist Agreement with regard to your question related to the ownership of the image referenced above.
5. Our Claim amount in the sum of US$2,790.00 includes: (i) the regular fee for licensing the image; (ii) our external costs associated with locating infringements of our copyright protected materials; and (iii) our internal costs associated with enforcing our copyright. The fees pursued in infringement matters where our rights-managed materials are published without license or authorization from Masterfile or compensation being paid to the artist, are fair, balanced and reasonable.
6. I have attached a PDF document containing a side-by-side comparison of the image you published on your commercial web site and a copy of our watermarked image number 700-00022728, for your verification purposes. Review the images closely; I assure you they are the same image.
7. In the absence of a watermark (according to your statement), it is reasonable to assume that the Masterfile image you acquired through the Yandex.ru search engine was likely licensed to a legitimate user who legally published it on their own web site. This does not legitimize your use of our image.
8. “Innocent infringement” is not defense to liability, but is only considered in assessing the appropriate measure of statutory damages. Moreover, it is your burden, and a heavy one, to show that you are entitled to the lowest measure of statutory damages based on qualifying as an innocent infringer. Depending on the circumstances, Masterfile may elect to receive actual damages instead of statutory damages.
9. Your use of a Masterfile rights-managed image has caused damages to Masterfile and the artist that it represents as Masterfile has not been able to pay royalties to its artist for your use of the image. It also potentially harms Masterfile’s ability to license the rights-managed image. For these images, Masterfile needs to carefully track and control their licensed use so that its clients can know if their competitors have used the same (or even similar) images by providing usage histories for rights-managed images. These rights-managed images are more expensive to license than other types of stock images, and the control of their use is vitally important to Masterfile’s business. The bottom line is that Masterfile’s business is licensing images so it harms Masterfile’s business when it is not compensated for the use of its images.
10. Please feel free to consult with as many attorneys as you wish. And please note that if Masterfile is forced to litigate this matter, we will willingly provide any and all documentation required by the Court at that time. We have nothing to hide.
Be advised that if this matter is not resolved immediately, Masterfile will be left with no choice but to commence litigation. In such event, Masterfile will seek all remedies available under the Copyright Act, including statutory damages and all legal costs.
This letter is an attempt to settle this claim. Masterfile reserves all its rights and remedies whether legal or equitable.
Best regards,
John MacDougall
Well written, huh?
64
Getty Images Letter Forum / Re: Masterfile Lawsuits Filed
« on: July 21, 2011, 11:28:37 AM »
DontMessWith Texas,
what was your situation? Did you offer them $200-300?
what was your situation? Did you offer them $200-300?
65
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 21, 2011, 11:11:46 AM »
Hey guys!
Thanks for support! S.G., that's right, we don't want to pay unless we have to - that's normal reaction from everyone.
We are evaluating our strengths and weaknesses, like if we were preparing for the court hearing (we have an immigration court experience - and don't want to experience anything else like this). If we are sure that they will not follow after us, then we would ignore them. It would be easier if my husband bought a template of the website and this image in there, or if he hired a freelancer, or a website building firm - then yes, we would be able to prove our "innocent infringement". But he saved the picture from internet. We have nothing else but only "our saying of he didn't know". If you were a judge, would you accept it with no proof? No. They sent us the proof of the image was registered, and we have already contacted the Copyright Office - they didn't lie. Though, Masterfile register their images in "bulks". And it still rise a question for me: when they register their collection of thousands of images in it, is it this collection is considered as copyrighted work? If so, if we used only one image from this collection, does it mean that we used only one tiny part of their registered work? If so, can we use this fact as a defense based on fair use? That's true that the fair use reffers to using for educational, research, comments etc., but still a judge will consider 4 factors in determining fair use: 1)nature of work;2)purpose of use (in our case - commercial - bad point for us); 3)the amount and substantiality of the portion taken; 4)the effect of the use upon the potential market. I have question regarding the last 2 factors: if we used only a tiny part of registered work and the effect it had on stock photo market......Any ideas? Of course, it didn't have any affect on a market, in my opinion. They did sell, they are selling and they will sell no matter if infringement occurs or not. The only loss they have is their regular license fee from my husband. Just don't know how to prove all this....
Thanks for support! S.G., that's right, we don't want to pay unless we have to - that's normal reaction from everyone.
We are evaluating our strengths and weaknesses, like if we were preparing for the court hearing (we have an immigration court experience - and don't want to experience anything else like this). If we are sure that they will not follow after us, then we would ignore them. It would be easier if my husband bought a template of the website and this image in there, or if he hired a freelancer, or a website building firm - then yes, we would be able to prove our "innocent infringement". But he saved the picture from internet. We have nothing else but only "our saying of he didn't know". If you were a judge, would you accept it with no proof? No. They sent us the proof of the image was registered, and we have already contacted the Copyright Office - they didn't lie. Though, Masterfile register their images in "bulks". And it still rise a question for me: when they register their collection of thousands of images in it, is it this collection is considered as copyrighted work? If so, if we used only one image from this collection, does it mean that we used only one tiny part of their registered work? If so, can we use this fact as a defense based on fair use? That's true that the fair use reffers to using for educational, research, comments etc., but still a judge will consider 4 factors in determining fair use: 1)nature of work;2)purpose of use (in our case - commercial - bad point for us); 3)the amount and substantiality of the portion taken; 4)the effect of the use upon the potential market. I have question regarding the last 2 factors: if we used only a tiny part of registered work and the effect it had on stock photo market......Any ideas? Of course, it didn't have any affect on a market, in my opinion. They did sell, they are selling and they will sell no matter if infringement occurs or not. The only loss they have is their regular license fee from my husband. Just don't know how to prove all this....
66
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 20, 2011, 03:56:13 PM »
Also want to add, that I have read the Copyright Law Section 5 - about infringement. It says that in case of innocent infringement the paynment can be reduced, if defendand can prove the infringement was "innocent". In our cases, we cannot prove it, as my husband didn't use a template, didn't order his website from someone else. He just found the image on Yandex.ru - russian search engine, and saved it with right click option, don't even thinking that this is illegal. He just didn't know that this law applies to digital images....
67
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: July 20, 2011, 03:37:13 PM »
No, it was not a corporation, it was Partnership....when we went to accountant for tax preparation, she said that partnership should be formed when the annual revenue reaches to $1.000.000. She adviced to close it as partnership and act as self employed. He closed his partnership, but quit his travel trips because it was winter time and there were not interested people to go to Niagara Falls, and then we bought a house and it needs a lot of repair, so we both work full time and then in the house....The business died at all....
68
Getty Images Letter Forum / Re: Class Action Lawsuit Against Masterfile.
« on: July 20, 2011, 03:32:12 PM »
Absolutely agree! Masterfile and other businesses like this, are acting legally, within the law, and you cannot do anything about it, even if you can clearily see that this is straight extortion. In Russia we would say ''lawfull theft" to this. That's true, that the Law covers only plaintiff's side, and there is no defense for "infringeners", innocent or guilty - they do not care. Absolutely agree about cease and desist letters - if they sent it first, they would not make any money. This law needs to be reviewed and corrected. The government tryes to fight the huge debt, meanwhile a lot of money from taxpayers are floating to Canada, UK, etc. as retroactive license fees. And these money could be used for business development, neccessary purchases (think sales and other income taxes).
As for lawsuit against masterfile.... There is no proof that they are froud. What they will do with this lawsuit is wipe their "some" place with it and throw away. What we can do, is to create a kind of petition (or I don't know how it can be called) for the government to review and adjust the law so both sides would be equally protected. But if there is a serious and lawfull ground for the suit - that's a different question.....
As for lawsuit against masterfile.... There is no proof that they are froud. What they will do with this lawsuit is wipe their "some" place with it and throw away. What we can do, is to create a kind of petition (or I don't know how it can be called) for the government to review and adjust the law so both sides would be equally protected. But if there is a serious and lawfull ground for the suit - that's a different question.....
69
Getty Images Letter Forum / Masterfile - in need of urgent advice
« on: July 20, 2011, 03:07:45 PM »
I am so glad that I have found this forum! Such a relief!
In May this year my husband got a demand letter from Masterfile for the usage of their picture on his travel website. It was only one image of Niagara Falls, and they are asking $2790 for retroactive fee. Of course, he didn't know that the image was copyrighted, we are originally from Russia, and we never heard of this, we heard of "piracy" when reproducting and reselling music and video CDs, but not images! He removed this picture immediately and contacted Masterfile with apologises. His business was closed at the end of the year 2010 - he didn't make any profit from Niagara Falls trips for tourists. He had partnership as a type of his business. Masterfile said that they were in a receipt of our e-mail and would contact us shortly. And we heard from them...in 1,5 months, saying that my husband failed to settle down the issue with retroactive license, and they were demanding the full payment within 5 days.
We tried to find an attorney, and contacted several one. All of them said that it would be more expensive to hire them than to pay in full, and they couldn't give any answers on what the options are untill we are their clients. We are not able to hire anyone, we just do not have any money for this.
Anyway, I created a letter for my husband, in which I asked to prove that they have the right for this image, and it was registered by Copyright Office. I asked what affect the usage of the image had on a market that they estimate it for about $3000. I asked them why there was no any copyright sign on the image, as this is misleading for many internet users , also we insisted on innocent infringenet if it occured - we had no ideal about copyrighting the images. Then, we also stated that the businees was closed, no profit made, and the main mean for advertising was using flyers and craigslist postings whiout any mentioning of the website where the image was. The statistics of website visiting was low - about 2000 visits for the homepage and about 130 visits for the page where image was, so I said it would be considered as fairly used.
Now we got a response from them, clarifying all the questions we had - and proving their registrations, agreements, etc. They offered to settle down for $1500.
I don't know what to do. We still don't think that $1500 is fair pay to Masterfile, but if the will proceed in court, we would pay more, as it is still the infringement, innocent or not. We used their price calculator to check their regular license fee for the image - we came up with $740, but not $930*3=2790 as they charge. Are $740 their actual damages? They stated that the amount they were asking for includes regular fee+ actions to find infringement+efforts to force infringement, which sounds reasonable, from one hand.
If anyone can advice something, I would greatly appreciate it. I just want this to go away, as I do not sleep at nights because of the stress it causes. If we pay them, where are the guarantees that they will not send something else?
Hope I can find an answer....
In May this year my husband got a demand letter from Masterfile for the usage of their picture on his travel website. It was only one image of Niagara Falls, and they are asking $2790 for retroactive fee. Of course, he didn't know that the image was copyrighted, we are originally from Russia, and we never heard of this, we heard of "piracy" when reproducting and reselling music and video CDs, but not images! He removed this picture immediately and contacted Masterfile with apologises. His business was closed at the end of the year 2010 - he didn't make any profit from Niagara Falls trips for tourists. He had partnership as a type of his business. Masterfile said that they were in a receipt of our e-mail and would contact us shortly. And we heard from them...in 1,5 months, saying that my husband failed to settle down the issue with retroactive license, and they were demanding the full payment within 5 days.
We tried to find an attorney, and contacted several one. All of them said that it would be more expensive to hire them than to pay in full, and they couldn't give any answers on what the options are untill we are their clients. We are not able to hire anyone, we just do not have any money for this.
Anyway, I created a letter for my husband, in which I asked to prove that they have the right for this image, and it was registered by Copyright Office. I asked what affect the usage of the image had on a market that they estimate it for about $3000. I asked them why there was no any copyright sign on the image, as this is misleading for many internet users , also we insisted on innocent infringenet if it occured - we had no ideal about copyrighting the images. Then, we also stated that the businees was closed, no profit made, and the main mean for advertising was using flyers and craigslist postings whiout any mentioning of the website where the image was. The statistics of website visiting was low - about 2000 visits for the homepage and about 130 visits for the page where image was, so I said it would be considered as fairly used.
Now we got a response from them, clarifying all the questions we had - and proving their registrations, agreements, etc. They offered to settle down for $1500.
I don't know what to do. We still don't think that $1500 is fair pay to Masterfile, but if the will proceed in court, we would pay more, as it is still the infringement, innocent or not. We used their price calculator to check their regular license fee for the image - we came up with $740, but not $930*3=2790 as they charge. Are $740 their actual damages? They stated that the amount they were asking for includes regular fee+ actions to find infringement+efforts to force infringement, which sounds reasonable, from one hand.
If anyone can advice something, I would greatly appreciate it. I just want this to go away, as I do not sleep at nights because of the stress it causes. If we pay them, where are the guarantees that they will not send something else?
Hope I can find an answer....
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